Saturday, May 31, 2008

The Duke attorneys summarize the lacrosse players’ claims, in the very first paragraph of the Duke reply’s “nature of proceedings”:

[The lacrosse players] contend that Duke and its employees violated their legal rights by providing the police with information about the alleged rape during the investigation. They also contend that the University had a legal obligation to quell public debate about the alleged rape. In essence, Plaintiffs argue that the University had a legal duty to stand between themselves and the prosecutor, and to try to prevent the police and prosecutor from investigating them for a very serious crime.

All the filings in this case are in the public record, and available on the internet. There’s nothing in any of the lacrosse players’ filings that even remotely suggests that the players “contend that the University had a legal obligation to quell public debate about the alleged rape.” Or that the players “contend that Duke and its employees violated their legal rights by providing the police with information about the alleged rape during the investigation.” Or that the players believed “that the University had a legal duty to stand between themselves and the prosecutor, and to try to prevent the police and prosecutor from investigating them for a very serious crime.”

Surely, of course, Duke’s lawyers—some of the most accomplished civil attorneys in the country—fully understand that their description of the lacrosse players’ case bears no resemblance to the reality of the actual claims.

How, then, to explain the off-the-wall summary of the case? It would seem, unfortunately, that Duke has used its filing to try and influence not the court but public opinion in general and its alumni in particular. That might be a wise public relations strategy. But it seems a rather risky approach to take in dealing with a court of law.

I summarize the Duke motion to dismiss below; a post tomorrow will look at the city's reply.

The Duke motion to dismiss was filed yesterday afternoon. The document is a curious one—reflecting the University’s twin, and perhaps irreconcilable, aims in the lawsuit.

On the one hand, the 50-page motion seems geared not for the court but for public opinion, describing the lacrosse players’ legal claims in a manner that anyone who has read the case file would recognize as ridiculous—but which might allow the University to score some public relations points. On the other hand, some of the legal claims in the brief might be valid—but they are devastating in terms of public relations, suggesting as they do that Duke administrators believe they have no legal obligation to uphold anti-harassment policies, the Faculty Handbook, or even federal law regarding the privacy of student records.

A summary of the filing:

The Banal

Duke’s motion to dismiss is riddled with statements to which no one could possibly object—and which have no bearing on the lacrosse players’ lawsuit.

For instance:

“Our system of justice encourages individuals to cooperate with the police, not to hinder them, and to provide information to prosecutors, not to stonewall them.”

Nothing in the lacrosse players’ lawsuit suggests otherwise.

“Nor did Duke have a legal obligation to publicly proclaim Plaintiffs’ innocence.”

No one, as far as I know, has ever claimed that Duke did have such a legal obligation. Certainly the lacrosse players’ lawsuit makes no such claim.

“[SANE nurse Tara] Levicy’s conduct was not, as a matter of law, ‘extreme and outrageous’ because under North Carolina law reporting a crime to the police and prosecutors—even if that report is false—is not ‘extreme and outrageous conduct.’”

No one, as far as I know, has ever claimed that Levicy engaged in improper conduct by simply “reporting a crime.” Certainly the lacrosse players’ lawsuit makes no such claim.

Only two possible explanations exist for the inclusion of these clauses, neither of which reflects favorably upon Duke. (1) The Duke attorneys included the passages above (and the “Creating Writing 101” paragraph) for public relations, rather than legal, reasons—a strategy that risks alienating the judge who is considering the motion. (2) The Duke attorneys are unaware of (a) their clients’ behavior over the past 28 months and (b) the substance of the lacrosse players’ lawsuit.

Given the high quality of the Duke attorneys, (1) is the most plausible explanation.

Revisionist History

Other passages in the Duke brief reflect events as Duke administrators doubtless wish they had occurred, rather than what actually happened.

For instance:

“Duke waited for the investigation by the police and the prosecutor to run its course, and that is exactly what the criminal justice system expected it to do.”

Well, not exactly:

The president of Duke canceled the lacrosse season (without even hinting he was doing so to protect the players’ safety), an action almost unparalleled in the history of Division I athletics.

Duke opened a parallel investigation of the players’ conduct, in which the players had no right of cross-examining witnesses or even presence at witness interviews—which threatened (if, in fact, there had been any bad behavior by the players beyond the common college-age issue of underage drinking) to provide the police and prosecutor with additional evidence for their campaign against the team.

On April 5, 2006, president of Duke issued a public statement falsely asserting that the players had a history of racist comments.

Beyond these errors of commission were errors of omission, such as:

Eighty-eight Duke faculty members—violating, as we now know, at least two Duke rules (regarding university payment of political ads and the method through which departments formally endorse political ads)—published a statement that, among other things, thanked protesters who had urged the lacrosse players’ castration and had distributed wanted posters with the players’ photos around campus. The Duke administration did nothing in response.

Several Duke faculty members engaged in in-class harassment against the players—behavior that seemed to violate both the Faculty Handbook and Duke’s anti-harassment policies. The Duke administration did nothing in response.

At least three faculty members (Peter Wood, Grant Farred, and Karla Holloway) made public statements that clearly violated the Faculty Handbook. The Duke administration did nothing in response.

A Duke employee—Tara Levicy—appeared to violate multiple best practices for SANE nurse behavior, harming Duke students in the process. The Duke administration did nothing in response.

Can Duke attorneys credibly assert that the above behavior constituted “Duke wait[ing] for the investigation by the police and the prosecutor to run its course” before taking any action?

The Legal

Duke cites North Carolina rulings to claim that it had no legal obligation to enforce either the student bulletin or the Faculty Handbook: “Plaintiffs fail, however, to allege the essential elements of any valid contract—the mutual manifestation of an intent to be bound . . . The North Carolina courts have consistently held, however, that bulletins of this nature—including Duke’s own student bulletin—are not binding contracts.”

Even if the item were a binding contract, Duke’s attorneys continue, the players’ lawsuit should be dismissed, because the players “have not alleged that they suffered any physical injury as a result of Duke’s alleged failure to enforce that policy.”

And, in an implicit defense of the Group of 88’s conduct, the Duke brief maintains that “anti-harassment policies must be balanced against principles of academic freedom”—i.e., if professors engaged in race/class/gender pedagogy are harassing students through statements or actions that reflect the professors’ academic worldview, such harassment is fair game.

Perhaps more than any other item in Duke’s 50-page response, that passage demonstrates just how damaging to Duke this lawsuit could potentially be. Duke’s attorneys base their claim on a 1991 case, Love v. Duke University, which held that the student bulletin didn’t constitute a contract. Love, therefore, is seemingly on-point in terms of legal strategy, although the claims in Love were much narrower than those in this case.

Beyond the legalities, however, ponder exactly what this filing says: that despite stated anti-harassment policies in the student bulletin, and a specific obligation in the Faculty Handbook that all Duke professors treat all Duke students with “respect” as fellow members of the academic community, in Duke’s legal opinion, these documents are just words. Parents of prospective Duke students, therefore, should have no expectation that administrators, professors, and even other students will abide by the provisions in the codes, and should have no expectation that the Duke administration will enforce these codes. Such a statement is a public relations nightmare.

Moreover, as any Duke student ever caught in the web of Dean Bryan’s Judicial Affairs Office can attest, Duke generally has enforced the student bulletin as if the University were legally obligated to do so. And looking over past editions of the Chronicle, I haven’t encountered other cases in which professors harassed students and the administration did nothing.

This pattern of practice, therefore, raises a troubling question: if Duke normally enforces both the bulletin and the Faculty Handbook, why did it not do so in this case? Was Duke’s behavior explicable by the fact that the targets were white males, and those allegedly violating the bulletin were politically correct African-American or feminist students? And was Duke’s behavior explicable by the fact that the targets were white males, and those allegedly violating the Faculty Handbook were professors whose race/class/gender pedagogy and “diversity” agenda dominates campus discourse?

A reader of the Duke motion also might experience a bit of intellectual whiplash. In a later section of their brief, the Duke attorneys argue that Duke administrators had no legal obligation to “care” for the lacrosse players, and therefore shouldn’t be held legally liable for urging the players not to tell their parents about the case, or for the decision to hire attorney/fixer Wes Covington. Why? Because, the Duke attorneys explain, “university educators and administrators . . . always remain charged with carrying out the ‘rules and regulations’ of the university.”

Yet, just pages before, these very same Duke attorneys had maintained that these very same “university educators and administrators” did not have to “carry out” the terms of the bulletin or Faculty Handbook—“the ‘rules and regulations’ of the university.”

How convenient.

Legal Effects

Unlike its discussion of Duke’s failure to enforce its anti-harassment policies or the Faculty Handbook, the Duke attorneys don’t even attempt a p.r.-based defense of Duke administrators’ March 2006 dealings with the lacrosse players. Nor does the brief even attempt a p.r.-based defense that Duke Police officers—in apparent violation of Buckley—handed over the lacrosse players’ keycard data to the DPD and Nifong—and then didn’t tell the lacrosse players that they had done so when, months later, the players successfully (or so they thought) fought the release of this information in court.

Instead, the Duke attorneys deny that “university administrator assumes a duty of care to a student by giving that student advice, however misguided or inadequate the advice may turn out to be [emphasis added].” Like so much else in this brief, I suspect that the University won’t be publicizing this point to prospective Duke parents. Allowing the players’ case to go forward, Duke’s attorneys maintain, could have a chilling effect: “Because such mentorship and guidance would be too risky underPlaintiffs’ theory of liability, students would be deprived of many important aspects of a university education that occur outside the classroom.”

Shouldn’t, however, a court want to “deprive” students of the kind of advice and guidance offered by Duke in this case? As Jim Coleman has pointed out, one effect of civil litigation is to provide a deterrent effect, and in this case, Universities should be deterred against administrators giving wildly “misguided” advice.

Regarding the key card data, the Duke attorneys concede that the key card data should have been protected under FERPA, but then blandly suggest, “Plaintiffs had no constitutionally protected expectation of privacy in that key card data.” In other words: yes, the law was violated, but Duke students have no “constitutionally protected expectation” that Duke employees won’t disclose their confidential data and then remain silent about the decision to do so.

How reassuring.

Historians should avoid predicting the future. But I believe I can say with certainty that Duke won’t be sending out any of the above passages to parents of prospective students in the Class of 2012.

Tuesday, May 27, 2008

Professors are supposed to be open-minded, willing to dispassionately evaluate new evidence as it arrives, and, if necessary, reconsider their initial assumptions. Obviously, the lacrosse case showed another side of some elements of the Duke faculty, as race/class/gender advocates not only presumed guilt but then reinvented the past to rationalize their initial actions.

So we had Group of 88 member Cathy Davidson penning a January 2007 op-ed describing the Group’s statement as a necessary corrective to the first week’s media coverage, which was dominated by the voices of the lacrosse players—when, in fact, the first week’s media coverage all but ignored the lacrosse players’ protestation of innocence, and instead focused on Mike Nifong and extremist students and professors presuming guilt. Or we had Charlie Piot suggesting that the Group’s statement didn’t presume guilt, because it thanked only those who had protested on March 27, 2006, not on March 26, 2006 or March 29, 2006—even though the statement contained no such qualification, and even though the March 27 protesters, like those on the other two days, presumed guilt. Or we had the Lubiano Trio writing that AG Roy Cooper dismissed the charges merely because “there was no credible evidence to support the allegation that a crime had occurred”—even though Cooper repeatedly and publicly stated he had dismissed the charges because the players were actually innocent, a far more stringent standard.

The latest efforts of Tim Tyson, then, are merely one in a long line of dubious activities by the Group and its campus allies. Like his pedagogical comrades, Tyson recently reinvented the past, in quite substantial ways. He claimed that he had defended the presumption of innocence in a March 2006 statement—without mentioning that, in March 2006, he had preposterously claimed that the lacrosse players “might” have committed an “illegal” act by postponing an unsupervised interview with Sgt. Mark Gottlieb so they could consult with attorneys. And he also reiterated his March 2006 assertion that the lacrosse players embodied “the spirit of the lynch mob,” citing the racially charged after-party argument, initiated by Kim Roberts (an African-American) between Roberts and a lacrosse player—without mentioning that, in March 2006, he had justified the statement by (falsely) implying the racial taunts occurred while the women were dancing, (falsely) claiming that both women had made the claim, (falsely) claiming that multiple neighbors corroborated the allegation, and (falsely) asserting that evidence existed of a “lot” of racial slurs.

In the comment thread at the N&O blog, Tyson, incredibly, has continued to offer factually unsupported claims. For instance, he asked, “Did KC Johnson or any of the people indignant about the lacrosse case say one word on behalf of Darryl Hunt? You guessed it. Their concern for racial justice is confined to ‘the vanilla suburbs,’ and always will be.” Yet, in fact, I’ve mentioned the Hunt case both in public talks and in UPI, and one DIW reader searched to find 67 references to it over the course of the blog. (Tyson, moreover, appeared unaware of how the question could be turned on its head: despite the highest-profile case of prosecutorial misconduct in modern American history occurring in his own backyard, there’s no evidence that Tyson ever said “one word” while the case was ongoing on behalf of Mike Nifong’s victims, suggesting his “concern for racial justice” is confined to quarters outside the Duke student body.)

Pressed on the Hunt issue by other commenters, Tyson dug an even deeper hole for himself, as John in Carolinaobserved. In the Hunt case, wrote Tyson, “The prosecutors knew that the killer was a light-skinned African American, but Hunt is quite dark-skinned. Nor was there any evidence against him. Demogoguery [sic] (and eleven whites) on the jury convicted Hunt. Nineteen years later, community activism forced a reexamination of his case, and DNA evidence (and some simple questioning of the record) led to the real killer . . . The city of Winston-Salem paid him many times less than the accused lacrosse players have received so far, and roughly 28 and a half million dollars less than the players are currently suing Durham for.”

To my knowledge, no objective observers deny that Hunt was imprisoned for a crime he didn’t commit. Yet coverage of the Hunt case in the Winston-Salem Journal doesn’t substantiate Tyson’s dramatic claim that prosecutors “knew” that Hunt didn’t fit the description of the assailant (unlike the Duke case, a crime did actually occur in the Hunt case) and had no evidence against him.

Moreover, Tyson’s comments about the financial settlement correctly raised the eyebrows of another DIW reader: “Since the only money that the ‘lacrosse players have received so far’ has come from the heretofore-secret settlement terms between Duke and the players, Prof. Tyson is telling us something new -- that Duke paid the players ‘many times’ more than Hunt received, which was $1.65 million. And he is not claiming this is just ‘an opinion’ or ‘a guess’; he's stating it as absolute fact . . . Given Prof. Tyson's close connections with the Duke Administration (he was named a ‘Dukie of the Year’ in 2006), it would not be unfair to presume that he speaks with some authoritative knowledge on the subject. Thus, I think a phone call to Duke is in order to see if the administration will confirm or deny that Prof. Tyson is telling the truth about the amount of the confidential settlement.”

On the issue of the size of settlements, Tyson appears unaware of the law. In a September 12 N&O article, Jim Coleman explained,

how much the lacrosse players suffered is just one factor in determining an appropriate amount to seek. Coleman said he thinks Durham police failed to adequately explore evidence that could have exonerated the players, a charge the city denies. He said other falsely accused people have suffered more, but they often were the victims of negligence rather than an intentional effort to bring charges without evidence.

The question of intent—whether police willfully railroaded the lacrosse players—will be a key factor if the civil case goes to trial, Coleman and Largess said. If police and city officials are found to have maliciously pursued the case knowing the evidence wasn’t there, they should pay until it hurts, Coleman said. “There’s an element of punitive action involved in lawsuits like this,” he said.

On September 13, Coleman added that deterrence can be a critical action of such suits: “When the city acts in ways that are so totally outrageous and could have been prevented, I think the damages ought to be sufficient to deter that kind of behavior in the future and also to send a message to other cities and prosecutors across the state. I have no idea the damage they suffered. There’s no way for us to say $30 million is low or high.”

What’s the significance of the type of closed-mindedess we’ve seen from Tyson, or Davidson, or Piot, or Lubiano, or Group members like Grant Farred and Houston Baker? In the lacrosse case, the truth was plain to see, and yet groupthink members of the faculty of Duke—one of the best universities in the United States—seemed unwilling or unable to process the information, because doing so contradicted their race/class/gender worldview. Perhaps, of course, Group members and allies were closed-minded on this issue alone, and fairly and dispassionately evaluate evidence when dealing with ideologically charged issues in their scholarship and teaching. But based on the conduct we’ve seen, such a theory seems unlikely.

To what extent, then, does a similar closed-mindedness permeate the scholarship and teaching—issues largely outside of the realm of public interest—of Group members and likeminded colleagues at other elite institutions?

Saturday, May 24, 2008

Last week, the N&O’s Peder Zane profiled Duke faculty member Tim Tyson’s efforts to examine the racial history of the South; the article revealed that “Pender and New Hanover counties District Attorney Benjamin R. David’s mother signed up for the course last year, then convinced her son that the class would help his efforts to build trust across communities.” Given his race-based assumptions on the lacrosse case, the idea that Tyson is providing any intellectual assistance to any law enforcement official is—to put it mildly—troubling.

Several people e-mailed Zane to note the contradiction between Tyson’s performance in the lacrosse case and his apparently newfound support for due process. Zane followed up with Tyson, and blogged on the matter yesterday.

Tyson’s responses should surprise no one who has followed the case: the apparent inability of the Group of 88 and its sympathizers to apologize for their actions (or, in the case of figures such as Susan Thorne, to retract their apologies under pressure from other Group members) continues unabated.

Q: In the days since we ran the story about your Southern history and racial reconciliation work, I have heard from a number of readers who thought the piece should have been more questioning. In particular, they wanted to ask about your statements on the Duke lacrosse case, which they see tend to see as a failure of vision on your part.

Tyson: I agree with your critics that the piece you wrote on my work was incomplete and did not give a sufficiently complex picture of me. For example, I threw spitballs in Ms. Dorothy Ashley’s English class in the seventh grade, and she was a saint, and also nearly blind. It was a low point. There have been others.

It’s not clear whether Ms. Allison was African-American, and Tyson’s decision to throw spitballs at her was racially charged. Otherwise, it’s hard to see the relevance of this incident to a discussion of racial reconciliation and Southern law enforcement. The lacrosse case, on the other hand, directly dealt with themes of race and the law.

[Tyson]: But I disagree with your critics that somehow my utterances on the Duke lacrosse fiasco represent a serious stumble. None of us has a crystal ball and, if I could have had a God’s-eye view and seen all the way to the end of the story, if anything ever really ends, I might have spoken a little differently. But in all honesty, and with a little surprise, I still would not go back and change what I said very much. I could be wrong, but it appears to me that some who have complained about my words did not hear what I said or heard very selectively.

Following the first reports on the lacrosse incident, I made two public statements. One was printed in the News and Observer and the other broadcast on WUNC radio. In the newspaper piece, I criticized the Duke students for hiring strippers from across the tracks, which in my view put them in the position of using people as things, adding that ‘the question of whether they also committed rape is one we must leave to the courts and to the police.’ I also described the historical context in which these events occurred, which is not the same thing as saying precisely what occurred, which is not something I knew, even though I read all the press accounts, many of which turned out to be deceptive. But I am a historian and I do not believe everything I read in the newspaper.

In the WUNC radio piece, I stated that ‘it is important for us to remember that an investigation is pending, and the police are the only people qualified to figure out what happened in that house altogether, and we have to support [the police] as they do that dirty job of trying to figure out what kind of ugly things unfolded there. But it’s clear even in the most favorable reading of this that what we have is young men of privilege who have somehow learned that other people could be treated as things.’ I acknowledged that the accused may not be guilty, but stated that ‘even if the charges of rape are not true, there was a terribly degrading spectacle unfolding that night.’

Tyson left out a few items from the summary of his activities. First, in addition to his two public statements, Tyson was one of two Duke professors (Faulkner Fox was the other) to have publicly acknowledged attending the March 25, 2006 candelight vigil outside the lacrosse players’ house. He did so, he informed WUNC’s Frank Stasio, in his capacity “as a teacher,” because Crystal Mangum was “somebody’s daughter and somebody’s sister and somebody’s mother and somebody’s sweetheart.” [emphasis added]

Ironically, at almost the same time as the vigil, Mangum was videotaped at the Platinum Pleasures Club, dancing in a most limber fashion. No evidence exists that Tyson has ever protested against the Pleasures Club, or has called for local or state government authorities to shut down exotic dancing establishments, even though the women in such establishments are, presumably, “somebody’s daughter and somebody’s sister and somebody’s mother and somebody’s sweetheart.”

Tyson also neglected to mention to the N&O that in his interview with WUNC, he offered the following, quasi-legal analysis:

One of the really terrible things about this is that these young men are banding together and refusing to cooperate with the police investigation. I think that may be illegal. It’s certainly a violation of the spirit of the honor code of the university. It’s a terrible moral miscalculation that I think you have to be utterly blind to pursue . . . I wouldn’t—if I were in President Brodhead’s shoes, and I think he fills those shoes mighty well—I think I wouldn’t let this team continue to exist until the police get some cooperation from them. [emphasis added]

His WUNC statement (which, to my knowledge, Tyson has never retracted or amended) was (a) factually inaccurate, since the captains had completely cooperated with police; and (b) about as bald a dismissal of basic civil liberties as anything offered by any Duke faculty member at any point in the case. No wonder Tyson neglected to bring it up in his e-mail to Zane. Does Tyson continue to believe that the decision of the lacrosse players other than the captains to postpone unsupervised interviews with Sgt. Mark Gottlieb might have been “illegal”?

[Tyson]: This [his negative portrayal of the lacrosse players’ behavior] all seems fairly self-evident to me. In fact, given what was being printed in the newspaper and the statements issued by the District Attorney. I am surprised that a person as impassioned and opinionated as me would have the presence of mind to consistently remind people to withhold judgment. Raising questions and making people think, as opposed to running for public office, for example, is the nature of my work, and ‘provocative’ is not an insult to a teacher. But people are free to disagree. Your head is not just a hair farm and none of us is going to see things in exactly the same light.

No one would argue that being provocative is a bad thing. On the other hand, there’s little value in being provocative simply for the sake of being provocative. Moreover, Tyson (like many Duke faculty) continues to overlook the requirements of Chapter Six of the Duke Faculty Handbook requires professors to treat all Duke students—regardless of their race, class, gender, or athletic status—with “respect and consideration,” as “fellow members of the university community.”

Q: The statement that seems to rankle people the most is from the News and Observer essay, where you say that ‘the spirit of the lynch mob lived in that house on Buchanan Street.’ Many seem to believe that the real lynch mob was the one outside the house condemning the lacrosse players in advance of a trial. How do you respond to that critique?

Tyson: First, I would remind readers first of what I said at the time, which consistently included that my view that the guilt of the accused was ‘one that we must leave to the courts and to the police.’ I continue to regard that as a reasonably thoughtful stance, especially given the statements of the District Attorney’s office that appeared in the press.

Lynching is murder. It therefore is rather difficult to imagine how most people would have interpreted a comment that “the spirit of the lynch mob lived in that house on Buchanan Street” as anything other than a presumption of guilt. For Tyson to suggest that his comments offered a “reasonably thoughtful stance” is remarkable.

[Tyson]: But more than that, let me remind you that even though it is obvious that the rape charges were false, as I said they might be at the time, that we had a room full of drunken Duke students, all of them white, [emphasis added] using an African American woman as live pornography, and that one of them was apparently brandishing a broomstick and offering to use it as a sexual device.

Not all the students at the party were white—African-American lacrosse player Devon Sherwood attended the party, as he told ABC News in October 2006. But why should Tyson let the facts interfere with his racialized metanarrative?

[Tyson]: And one of the neighbors, who presumably has no axe to grind, reported racial epithets being hurled in the yard. That seems to justify the metaphor, in my mind. But of course, it is clear now that there was some mob mentality on both sides.

Tyson’s attempt to rationalize his “lynch mob” statement raises two questions. First, Tyson is now describing the party in quite different terms than he did in spring 2006. Here’s how he described the party to WUNC:

We have this ghastly spectacle of these rich boys wanting her to dance naked, and making racially degrading remarks. The neighbors who have no ax to grind in this, presumably, seem to confirm the charges of the women that there were a lot of racial insults thrown. [emphases all added]

Of course, we now know that: (a) the racially charged argument occurred in the yard (as Tyson now concedes) and not when “these rich boys [were] wanting her to dance naked,” as he implied in 2006; (b) that a report of the racially charged argument was made by “one of the neighbors” (as Tyson now concedes), who reported one racial insult, not by “neighbors” who reported “a lot of racial insults thrown,” as he contended in 2006; and (c) at the time of his “lynch mob” claim, the allegation of racial taunts had been made by one of the women (Kim Roberts), not both “women,” as Tyson stated in 2006.

Second, this shift in Tyson’s storyline suggests that the Duke professor has been following events since he made his spring 2006 “lynch mob” assertion, and has adjusted his story accordingly. (In theory, of course, professors are supposed to be open-minded, and reconsider flawed theses as new facts come to light; Tyson appears unwilling to engage in such self-reflection.) Yet even though Tyson is clearly aware of new information, he continues to assert, “One of the neighbors, who presumably has no axe to grind, reported racial epithets being hurled in the yard. That seems to justify the [lynch mob] metaphor, in my mind.”

Kim Roberts, the second dancer, explained the argument in some detail, to 60 Minutes. As the party was dispersing, she issued a racially charged taunt, and a lacrosse player responded with a racially charged slur. How does that history “justify,” as Tyson now claims, his extraordinarily inflammatory March 2006 statement that “the spirit of the lynch mob lived in that house on Buchanan Street”? Can a Duke faculty member seriously claim that a racially charged argument with two taunts, made by people of different races but with the first racially charged taunt coming from an African-American, shows that “the spirit of the lynch mob lived in that house on Buchanan Street”?

Q: Given all that has transpired, what do you consider to be the lasting lessons of the Duke lacrosse incident?

Tyson: Several things occur to me. First, when you set out to use people as things, you are headed for trouble. Many people act as if the young men of the lacrosse team are literally innocent, which is true in the legal sense of the word. I am glad they did not go to jail and I am sorry that they endured such an ordeal. But I continue to believe that hiring strippers or prostitutes for student\parties is wrong and also misguided.

Ask yourself this: if hiring these women to perform live pornography is perfectly fine, why don’t the sororities at Duke organize a Duke Escort Service to raise money for charity? It would be lucrative. And charities could use the money. But we would not do that because the university community regards its students as human beings, children of God, worthy of respect, and we don’t want our sisters and daughters to be regarded as things to be used. Instead, when we want to degrade someone as an object, we pay someone to be not-quite-human. We hire people whom we feel less obligated to care about to do our dirty work.

And those people are always the less powerful, whether because of their race or gender or their economic position. The negotiation in the market for human things is almost never strictly a free market, but instead those people are in a weak negotiating position. Their poverty, weakness and vulnerability—their addiction to drugs, for example, or their position in a racial caste system —places them in a poisonous labor pool, in the gutters of our society, where we prefer not to look, lest we see our own reflections. The heart of the problem, like so many others, is what Dr. King called the “thingification” of human beings. The phrase is not quoted as often as “I have a dream,’ but I think these may be his most enduring message.

A Duke faculty member, asked to reflect on the “lasting lessons of the Duke lacrosse incident,” doesn’t even mention the dangers of prosecutorial misconduct. He doesn’t even mention the dangers of popular, media, or faculty rush to judgment. He doesn’t even mention the poisonous nature of racialized political appeals, such as that offered by Mike Nifong in the November 2006 election.

No, for Tyson, the lesson of the lacrosse case is the nature of the party. That view, it’s worth noting, reflects a certain hard-line moral outlook; and I suspect that some faculty members at, say, Jerry Falwell’s Liberty College or at Brigham Young University would second Tyson’s analysis that the inappropriate nature of the party is the most significant lasting lesson of the case.

But beyond the unusual nature of a far-left figure such as Tyson offering a moral analysis associated with institutions of the religious right, Tyson’s moralistic view of the case raises a question. In spring 2007, another group of Duke students held a party. Underage drinking occurred; there were also allegations of drug use. An attendee at the party claimed that she was raped; police subsequently made an arrest.

Yet a Lexis/Nexis search reveals no comment about the affair by Tyson. Given the highly moralistic worldview he expressed to the N&O, this silence is puzzling. Surely the fact that in the 2007 incident the accuser was white and the accused African-American cannot account for Tyson’s silence?

Tuesday, May 20, 2008

In a recent radio interview, Duke’s Larry Moneta criticized a website called juicycampus.com. Moneta pointed to the site’s anonymous rumor-mongering to describe it (correctly) as worthy of condemnation.

Moneta’s outrage about the site prompted an understandable question from panelist Christopher Anderson, who wondered why Moneta hadn’t seemed concerned in spring 2006, when Duke professors and some students embarked on a rumor-mongering campaign against the lacrosse players. “I don’t see any correlation between the two incidents,” responded Moneta. The exchange is below.

I’m puzzled that Moneta struggled to see the connection raised by Anderson. After all, what were Group of 88’er Grant Farred’s unsubstantiated musings about the lacrosse players’ “arrogant sexual prowess” or their having committed “perjury” if not rumor-mongering about Duke students?

Though Moneta might not have done so, surely others would see a link between expressing concern about a website making false, anonymous rumors about Duke students and condemning Karla Holloway’s sending out a January 2007 mass e-mail containing a claim that she either knew or should have known was false: that a secret witness existed who would say there were racist remarks when Reade Seligmann and Collin were at the lacrosse party.

And it seems to me that a professor—say, Peter Wood—informing a New Yorker reporter that a lacrosse player had advocated genocide against Native Americans (when, in fact, Wood was basing his claim on nothing more than an anonymous course evaluation form) poses a far more serious issue of protecting student rights than speaking up against an anonymous rumor-mongering website.

Could it be that one reason Moneta wasn’t too concerned with the rumor-mongering of Holloway, Farred, and Wood was that he shared their basic approach to the case? This was, after all, the same Larry Moneta who—when the case first broke—dismissed attorney Samantha Ekstrand’s request that the administration protect the lacrosse players against the local mob and against Duke professors intent on retaliation. Why no concern with the lacrosse players? As Moneta told Ekstrand, “Frankly, Samantha, I don’t believe them.”

When pressed on the lacrosse case by Anderson, Moneta responded bluntly: “Not really a topic I’m interested in talking about.”

Friday, May 16, 2008

I strongly doubt that suggestions that the offending professors should “work as maids” or “return to the slave quarters” were “typically” offered by their critics. Indeed, in a very quick Google search, I couldn't find any instances of these two suggestions. Such disgusting insults must have been relatively rarely made by their editorial and blogger critics, if made by them at all . . .

I can’t recall one blog posting anywhere that suggested members of the Group should “work as maids” or “return to slave quarters”—and the idea that such remarks were typical is, of course, absurd. Lindgren wonders whether Social Text will run a correction on the unsubstantiated claims. I’m not holding my breath.

Lindgren also asks a not unreasonable question:

Why do these Duke professors bother to write about the Duke lacrosse hoax if they are not going to deal with their own actions honestly? If they can’t simply face the truth, they should put down their shovels and stop digging.

Tuesday, May 13, 2008

Tomorrow, two subcommittees of the House Judiciary Committee will hold joint hearings on the following topic: "Allegations of Selective Prosecution Part II: The Erosion of Public Confidence in Our Federal Justice System."

Here are the members of the two subcommittees; the links will proceed to the individual members' websites and email addresses. It would seem that one obvious topic for inquiry: why did the DOJ refuse Attorney General Cooper's request for a federal inquiry into the conduct of Mike Nifong, DSI, Linwood Wilson, and the Durham Police?

For those with time, it might be worth an e-mail.

One of the subcommittee members, Trent Franks (R-Arizona), did call for a DOJ inquiry; perhaps he could raise the issue publicly at the hearing.

Wednesday, May 07, 2008

Last night, Barack Obama scored a sizeable victory in what his opponent had suggested could be a “game-changing” contest, one that would place the eyes of the “world” on North Carolina. Obama won by around 233,000 votes—or around 3,000 votes fewer than Hillary Clinton’s combined popular vote-margin in Pennsylvania and Indiana. Obama’s tally of pledged delegates bested Clinton’s by 15—either one more or one fewer (depending on a late certification) than her advantage from her Pennsylvania and Indiana wins combined.

In short, Obama is basically in the same position today as he was on March 12—before the first of Rev. Wright’s two emergences—but with only a handful of states left to vote. He is, as Tim Russert pointed out last night, the presumptive nominee.

While North Carolina Democrats embraced change in their presidential primary, Durham County Democrats resolutely and defiantly clung to the status quo. The last time Durham Democrats had a primary for district attorney, they marched to the polls to nominate a man who had indicted a demonstrably innocent person (the videotape of Reade Seligmann at the ATM machine was shown on newscasts the night before the primary); then, in the fall, Durham County voters elected a man who—thanks to the 60 Minutes broadcast—had become a national symbol for prosecutorial misconduct.

You’d think with such a record, the city’s leadership and voters would have insisted upon an ethically pristine chief prosecutor this time around. But, of course, Durham operates under its own set of rules. Bolstered by the exact same coalition that propped up Mike Nifong (the Herald-Sun, the Independent, the Durham Committee on the Affairs of Black People, and the People’s Alliance), Tracey Cline won last night’s Democratic nomination. She’s unopposed for the general election.

Cline still has never explained how she developed a reasonable suspicion—as required by state law to have recommended a non-testimonial order—that (to take the most extreme example) Brad Ross, who was 20 miles away the night of the lacrosse party, could have committed a crime. Yet she recommended an NTO against Ross, and 45 Duke students, anyway. During the campaign, Cline gave a version of events about her involvement in the case that was contradicted by contemporary documentary evidence. Yet none of her institutional supporters reconsidered their endorsements. And, as the office’s point person on sex crimes prosecutions, Cline has never publicly explained what precisely (if anything) she thought Mike Nifong did wrong in handling the lacrosse case.

Yet she’ll be DurhamCounty’s next “minister of justice.” I can only imagine how most Duke parents feel today.

Then there’s the Durham academic world. In Sunday’s N&O, Anne Blythe reported on NCCU’s graduation, where “Crystal Gail Mangum, the woman at the root of the Duke lacrosse case and the phony gang-rape allegations dismissed by the state attorney general, was among the graduates Saturday. Mangum, in a cap and gown, flashed a smile to a friend after posing for an official graduation photo with her degree.”

I’ve seen a bit of Mangum’s writing (her police statement); I’d say she reads and writes at a ninth or tenth grade level. And everyone learned quite a bit about her schedule and lifestyle during at least part of the time she supposedly was taking classes at NCCU. She appeared to have both a drug and/or alcohol problem and a problem with emotional stability; and she appeared to organize her existence around not anything academic but instead her exotic dancing/prostitution schedule. NCCU doesn’t have the greatest academic reputation, but it’s embarrassing to see the university confer a degree on Mangum.

Imagine, moreover, if a student with the behavior described above (and, on top of that, had filed a police report the state AG had termed baseless) attended not NCCU but Duke. It’s hard to imagine that Larry Moneta and Dean Bryan would not (appropriately) have ensured that such a student would face disciplinary charges. If the student were white and male, doubtless most of the Group of 88 would have publicly demanded such a move. Yet Mangum never appears to have faced any disciplinary charges at NCCU, which speaks volumes about (to borrow a phrase frequently invoked by the Group) the institution’s campus culture.

Saturday, May 03, 2008

[At this stage, nothing should surprise me about this case, especially when the issue is Durham politics. Yet I confess that I am amazed that former Mike Nifong ADA Tracey Cline is a frontrunner for the position--endorsed by (of course) the Herald-Sun and several local PACs, despite the heavy shadow that Nifong should cast over her candidacy.

As of late, Cline has taken to rewriting history, claiming that she had little or nothing to do with the lacrosse case. Facts, of course, can be stubborn things. And what can also be said: if Durham County Democrats nominate Cline for district attorney, they would effectively be saying that they approve of a figure who aided the highest-profile instance of prosecutorial misconduct in recent memory.

As a reminder of Cline's real history, I'm reposting an item from last fall, when Cline first tried to run from her record of aiding Nifong in the case.]

From an October 2007 Herald-Sun, ADA Tracey Cline outlined the relationship between the lacrosse case and her bid for district attorney:

According to Cline, a major lesson was learned from the Duke lacrosse scandal: “The people of Durham expect one thing from the DA -- to do the right things for the right reasons. It’s not a popularity contest. It’s not doing anybody a favor. It’s knowing you have done the right thing and being able to sleep on it.”

Lesson No. 2: “You need to be transparent when you are district attorney. Everything should be out in the open. People might not agree with everything I do, but they should at least understand why I did it.”

Some suggested during the lacrosse meltdown that Nifong’s assistants dropped the ball by not reining in their boss, halting the scandal in its tracks.

Cline agreed last week that attorneys have a duty to report unethical conduct among their colleagues.

But she said she lacked insights into what Nifong was doing.

“I didn’t have any personal information about what went on in the lacrosse case, other than what the media reported,” she said.

Really?

1.) If she had no information other than what was reported in the press (which, as of March 23, 2006, was next to nothing), how, then, did Cline help Ben Himan prepare the fraudulent nontestimonial order that got the case rolling? Indeed, according to the Gottlieb deposition, he and Himan spoke to Cline, and then “the district attorney’s office thought it was a good idea to go ahead and do a Non-Testimonial.” [emphasis added]

To obtain an NTO, of course, authorities are supposed to have probable cause to believe a crime occurred, and a reasonable suspicion that the subject of the NTO could have committed the crime.

As part of her new commitment to transparency, will Candidate Cline reveal the evidence that gave her a reasonable suspicion that Brad Ross—who wasn’t even in Durham the night of the party—could have committed a crime?

2.) It came out during the Nifong ethics hearing that the ex-DA was planning to prosecute the case alongside Cline. Indeed, according to the Gottlieb deposition, Nifong told Crystal Mangum that “he would be working very closely with Ms. Cline.” [emphasis added]

Is Candidate Cline now asking the citizens of Durham County to believe that even though Nifong planned to prosecute the case alongside her, and even though he told Mangum he would be working “very closely” with her, and even though she was the office’s expert on sexual assault cases, and even though she was the office’s highest-ranking African-American and woman in a case charged on race and gender lines . . . that she and Nifong never spoke about the details of the case, and that she knew no more about the details of the case than what appeared in the paper?

If so, is Candidate Cline calling Ben Himan a liar? After all, in cross-examination from Lane Williamson at the Nifong ethics hearing, Himan said that Cline told him that she had read over some of the case file.

3.) It came out in the Kendra Montgomery-Blinn testimony at the ethics hearing that Cline implemented the “No-Drop” policy, in which the Durham DA’s office has adopted a policy of effectively abandoning even the fiction of prosecutorial discretion, but only on sexual assault cases. Does Cline still believe that district attorneys don’t have to exercise discretion in prosecuting sexual assault cases; and that they can and must take all such cases to trial, regardless of the evidence, as long as they, for whatever reason, happen to believe the accuser? And, given the facts of the lacrosse case—on which, according to her boss, Cline was going to serve as co-counsel,

Did she approve of the procedures used in the April 4 lineup?

Did she approve of the decision to seek an indictment against Reade Seligmann even though police didn’t even know if Seligmann attended the party?

Did she approve of sending Linwood Wilson to interview Crystal Mangum on December 21?

Did she approve of Nifong’s decision to treat Mangum’s December 21 story—which included a wholly new timeline and description of the “attack”—as reliable?

As part of her stated commitment to transparency, no doubt Candidate Cline will be eager to answer these questions.

Friday, May 02, 2008

Kristin Butler, a senior English major at Duke University, has won the $1,000 first-place prize in the National Society of Newspaper Columnists' annual student-scholarship contest . . .

The winners were selected by Boston Globe/Washington Post Writers Group columnist Ellen Goodman, who'll receive the NSNC Ernie Pyle Lifetime Achievement Award at the organization's June 21-24 conference in New Orleans. Butler will be the guest of the NSNC at that meeting.

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About Me

I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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"From the Scottsboro Boys to Clarence Gideon, some of the most memorable legal narratives have been tales of the wrongly accused. Now “Until Proven Innocent,” a new book about the false allegations of rape against three Duke lacrosse players, can join these galvanizing cautionary tales . . , Taylor and Johnson have made a gripping contribution to the literature of the wrongly accused. They remind us of the importance of constitutional checks on prosecutorial abuse. And they emphasize the lesson that Duke callously advised its own students to ignore: if you’re unjustly suspected of any crime, immediately call the best lawyer you can afford."--Jeffrey Rosen, New York Times Book Review